Court of Appeal acts on Council's unlawful legislation

In the recent case of Enterprise Miramar Peninsula Limited, [1] the Court of Appeal overturned the resource consents granted for the development of Shelly Bay in Wellington. The Court did this because it found the Council had unlawfully allowed the purpose of the special legislation it was working under, the Housing Accords and Special Housing Areas Act 2013 (HASHAA), to “effectively neutralise” other relevant considerations.

HASHAA’s role has been coming to an end for a while. The deadline for it has been extended once. No new ‘special housing areas’ can be created under it and the whole Act will be automatically repealed on the close of 16 September 2021, unless Parliament further extends the life of the Act. However, with Parliament’s current tendency to create bespoke planning legislation, and proposal to create an Urban Development Authority, the Court of Appeal’s decision contains important lessons for drafters of laws and those applying them.

That lesson? – be very clear about the extent to which the purpose of special legislation is, and is not, intended to influence how decisions are reached.

At issue in the case is a provision in HASHAA that lists a number of matters for consideration in deciding an application for resource consent. These are specifically stated to be in descending order of weight.

the purpose of HASHA was not even “logically relevant” to an assessment of environmental effects; and

the Council gave “no substantive consideration” to the purpose and principles of the RMA.

Overall Court of Appeal concluded that the Council “used the purpose of the HASHAA to eliminate or greatly reduce its consideration and weighing of” other relevant considerations.